Bromwich noted that he had “no independent knowledge of whether the reporting is accurate” but suggested that if it was, prosecutors should abandon their effort. He wrote that — on the basis of a discussion Thursday with federal prosecutors — it “is clear that no indictment has been returned.”
McCabe’s legal team provided The Washington Post with a copy of the emails. Spokesmen for the Justice Department and the U.S. attorney’s office declined to comment.
“In substance, the decision whether to resubmit a case, following a no true bill, to the same grand jury — or submit the case to a new grand jury — is entrusted to your discretion,” Bromwich wrote. “We believe that for the reasons we have presented to you and the Deputy Attorney General in person and in writing, you should not resubmit this case.”
A “no true bill” case refers to a situation in which grand jurors are asked to bring an indictment and decline to do so.
To bring charges against McCabe, prosecutors would have to convince 12 of 23 grand jurors that there was probable cause he had committed a crime — a low legal bar. This week, it seemed prosecutors were on track to do so. The panel that had been investigating McCabe was resummoned after a months-long hiatus, and McCabe was told Thursday that his final bid to persuade the deputy attorney general to forgo charges had failed.
But grand jurors came and went with no public indictment being returned. That could be a sign they balked, though it is also possible they have filed a determination under seal or could be asked to return later.
McCabe and his team have waged an aggressive behind-the-scenes battle to dissuade prosecutors from moving forward with the case. Last month, after being informed that line prosecutors had recommended moving forward with charges, they met with Liu, and later — after Liu endorsed prosecutors’ recommendation — with Deputy Attorney General Jeffrey Rosen. They were waiting to hear back from the No. 2 Justice Department official when the grand jury was suddenly brought back this week.
Bromwich cited some of that effort, and noted that if grand jurors declined to bring an indictment, Justice Department policies would advise prosecutors not to pursue the case further. The policies, Bromwich wrote, call for prosecutors to bring charges only if they believe “the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”
“If the evidence presented by your office was insufficient to convince 12 members of the grand jury to find probable cause to believe that Mr. McCabe had committed any crimes, no attorney can reasonably believe that ‘the admissible evidence is sufficient to obtain a guilty verdict by an unbiased trier of fact,’ ” Bromwich wrote. “If the grand jury voted not to approve charges, it did not find probable cause. Therefore, it is simply not reasonable to believe that a trial jury would find Mr. McCabe guilty of any charges employing a far more rigorous and exacting standard — beyond a reasonable doubt.”
It is rare, but not unheard of, for grand juries to decline to indict. In a famous case from the 1980s, a grand jury declined to indict former professional tennis player Vitas Gerulaitis in a drug case, after his attorney waged a public campaign to present his side of the issue and said he expected charges before they were filed. In 1993, a grand jury declined to indict U.S. Sen. Charles S. Robb D-Va.) on obstruction and wiretapping charges — though that case had an unusual wrinkle in that the Justice Department’s No. 2 official told grand jurors explicitly that the decision to indict was theirs alone.
A grand jury also famously declined to indict police officer Darren Wilson in the fatal shooting of unarmed black teenager Michael Brown in Ferguson, Mo., in 2014.
Those in legal circles often joke that prosecutors can get a grand jury to “indict a ham sandwich” because the standard for returning an indictment is low, and because defense attorneys are not allowed to present grand jurors their side of a case. When a grand jury declines to return an indictment, there is sometimes speculation that it is because prosecutors did not try very aggressively to persuade the panel.
According to Justice Department statistics, just five “no true bill” cases were returned by federal grand juries from October 2012 through September 2013, the last year for which data is publicly available — compared with nearly 86,000 prosecutions in federal district courts that year.
Even if a grand jury rejected charges, it is possible the Justice Department could continue pursuing the case, perhaps with new evidence or a new grand jury, though the previous grand jury’s decision would almost surely hamper that effort and any future trial.
McCabe, 51, was involved in supervising two of the bureau’s most politically sensitive cases: the investigation of Hillary Clinton’s use of a private email server while she was secretary of state and the inquiry into possible coordination between the Trump campaign and Russia to influence the 2016 election.
The allegations against McCabe stem from the fall of 2016, a particularly fraught period in the bureau, when the Clinton email case was wrapping up and the Russia investigation was gaining traction. A Wall Street Journal report published around that time detailed tension inside the FBI and Justice Department over the Clinton email case and a separate investigation of the Clinton family foundation.
McCabe has acknowledged that he authorized two FBI officials to speak to a reporter. But he initially denied having done so when FBI officials — and, later, the inspector general’s office — tried to determine who might have spoken to the media.
The inspector general determined that McCabe lied four times to investigators, a possible federal crime, regarding his contacts with members of the media. On the basis of those findings, Attorney General Jeff Sessions fired McCabe from the FBI.
Prosecutors began using a grand jury last year after the Justice Department inspector general referred his investigation to the U.S. attorney’s office for the District of Columbia.